As Reported by the Senate Insurance, Commerce 2 and Labor Committee 2 123rd General Assembly 5 Regular Session Am. S. B. No. 267 6 1999-2000 7 SENATORS RAY-HOTTINGER-NEIN-DiDONATO 9 _________________________________________________________________ 11 A B I L L To amend section 3937.18 of the Revised Code 13 relative to an insured's recovery under uninsured 14 and underinsured motorist coverage regarding 15 wrongful death and other actions. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 17 Section 1. That section 3937.18 of the Revised Code be 19 amended to read as follows: 20 Sec. 3937.18. (A) No automobile liability or motor 29 vehicle liability policy of insurance insuring against loss 30 resulting from liability imposed by law for bodily injury or 31 death suffered by any person arising out of the ownership, 32 maintenance, or use of a motor vehicle shall be delivered or 33 issued for delivery in this state with respect to any motor 34 vehicle registered or principally garaged in this state unless 35 both of the following coverages are offered to persons insured 37 under the policyfor lossdue to bodily injury or death suffered 38 by such insureds: 39 (1) Uninsured motorist coverage, which shall be in an 41 amount of coverage equivalent to the automobile liability or 42 motor vehicle liability coverage and shall provide protection for 43 bodily injury, sickness, or disease, including death under 45 provisions approved by the superintendent of insurance, for the 46 protection of insureds thereunder who are legally entitled to 47 recoverdamagesfrom owners or operators of uninsured motor 49 vehicles because of bodily injury, sickness, or disease, 50 2 including death, suffered by any person insured under the policy. 51 For purposes of division (A)(1) of this section, an insured 54 is legally entitled to recoverdamagesif the insured is able to 56 prove the elements of the insured's claim that are necessary to 57 recoverdamagesfrom the owner or operator of the uninsured motor 59 vehicle. The fact that the owner or operator of the uninsured 60 motor vehicle has an immunity under Chapter 2744. of the Revised 62 Code or a diplomatic immunity that could be raised as a defense 64 in an action brought against the owner or operator by the insured 67 does not affect the insured's right to recover under uninsured 69 motorist coverage. However, any other type of statutory or 71 common law immunity that may be a defense for the owner or 72 operator of an uninsured motor vehicle shall also be a defense to 74 an action brought by the insured to recover under uninsured motorist coverage. 76 (2) Underinsured motorist coverage, which shall be in an 78 amount of coverage equivalent to the automobile liability or 79 motor vehicle liability coverage and shall provide protection for 80 insureds thereunderagainst lossfor bodily injury, sickness, or 82 disease, including death, suffered by any person insured under 83 the policy, where the limits of coverage available for payment to 84 the insured under all bodily injury liability bonds and insurance 85 policies covering persons liable to the insured are less than the 86 limits for the insured's uninsured motorist coverage. 87 Underinsured motorist coverage is not and shall not be excess 88 insurance to other applicable liability coverages, and shall be 89 provided only to afford the insured an amount of protection not 90 greater than that which would be available under the insured's 91 uninsured motorist coverage if the person or persons liable were 92 uninsured at the time of the accident. The policy limits of the 93 underinsured motorist coverage shall be reduced by those amounts 94 available for payment under all applicable bodily injury 95 liability bonds and insurance policies covering persons liable to 96 the insured. 97 3 (B) Coverages offered under division (A) of this section 99 shall be written for the same limits of liability. No change 100 shall be made in the limits of one of these coverages without an 101 equivalent change in the limits of the other coverage. 102 (C) A named insured or applicant may reject or accept both 106 coverages as offered under division (A) of this section, or may 108 alternatively select both such coverages in accordance with a 109 schedule of limits approved by the superintendent. The schedule 111 of limits approved by the superintendent may permit a named 112 insured or applicant to select uninsured and underinsured 113 motorists coverages with limits on such coverages that are less 114 than the limit of liability coverage provided by the automobile 115 liability or motor vehicle liability policy of insurance under 116 which the coverages are provided, but the limits shall be no less 117 than the limits set forth in section 4509.20 of the Revised Code 118 for bodily injury or death. A named insured's or applicant's 120 rejection of both coverages as offered under division (A) of this 121 section, or a named insured's or applicant's selection of such 122 coverages in accordance with the schedule of limits approved by 123 the superintendent, shall be in writing and shall be signed by 124 the named insured or applicant. A named insured's or applicant's 125 written, signed rejection of both coverages as offered under 126 division (A) of this section, or a named insured's or applicant's 128 written, signed selection of such coverages in accordance with the schedule of limits approved by the superintendent, shall be 129 effective on the day signed, shall create a presumption of an 130 offer of coverages consistent with division (A) of this section, 131 and shall be binding on all other named insureds, insureds, or 132 applicants. 133 Unless a named insured or applicant requests such coverages 138 in writing, such coverages need not be provided in or made 139 supplemental to a policy renewal or replacement policy where a 141 named insured or applicant has rejected such coverages in 142 connection with a policy previously issued to the named insured 144 4 or applicant by the same insurer. If a named insured or 145 applicant has selected such coverages in connection with a policy 147 previously issued to the named insured or applicant by the same 149 insurer, with limits in accordance with the schedule of limits approved by the superintendent, such coverages need not be 151 provided with limits in excess of the limits of liability 152 previously issued for such coverages, unless a named insured or 156 applicant requests in writing higher limits of liability for such 158 coverages. (D) For the purpose of this section, a motor vehicle shall 161 be deemed uninsured in either of the following circumstances: 162 (1) The liability insurer denies coverage or is or becomes 165 the subject of insolvency proceedings in any jurisdiction; 166 (2) The identity of the owner and operator of the motor 168 vehicle cannot be determined, but independent corroborative 169 evidence exists to prove that the bodily injury, sickness, 170 disease, or death of the insured was proximately caused by the 171 negligence or intentional actions of the unidentified operator of 172 the motor vehicle. For purposes of this division, the testimony 173 of any insured seeking recovery from the insurer shall not 174 constitute independent corroborative evidence, unless the 175 testimony is supported by additional evidence. 176 (E) In the event of payment to any person under the 178 coverages offered under this section and subject to the terms and 181 conditions of such coverages, the insurer making such payment to 182 the extent thereof is entitled to the proceeds of any settlement 183 or judgment resulting from the exercise of any rights of recovery 184 of such person against any person or organization legally 185 responsible for the bodily injury or death for which such payment 186 is made, including any amount recoverable from an insurer which 187 is or becomes the subject of insolvency proceedings, through such 188 proceedings or in any other lawful manner. No insurer shall 189 attempt to recover any amount against the insured of an insurer 190 which is or becomes the subject of insolvency proceedings, to the 191 5 extent of those rights against such insurer which such insured 192 assigns to the paying insurer. 193 (F) The coverages offered under this section shall not be 196 made subject to an exclusion or reduction in amount because of 197 any workers' compensation benefits payable as a result of the 198 same injury or death. 199 (G) Any automobile liability or motor vehicle liability 201 policy of insurance that includes coverages offered under 202 division (A) of this section or selected in accordance with 204 division (C) of this section may, without regard to any premiums 205 involved, include terms and conditions that preclude any and all 206 stacking of such coverages, including but not limited to: 207 (1) Interfamily stacking, which is the aggregating of the 209 limits of such coverages by the same person or two or more 210 persons, whether family members or not, who are not members of 211 the same household; 212 (2) Intrafamily stacking, which is the aggregating of the 214 limits of such coverages purchased by the same person or two or 215 more family members of the same household. 216 (H) Any automobile liability or motor vehicle liability 218 policy of insurance that includes coverages offered under 219 division (A) of this section or selected in accordance with 221 division (C) of this section and that provides a limit of 222 coverage for payment for damages for bodily injury, including 223 death, sustained by any one person in any one automobile 224 accident, may, notwithstanding Chapter 2125. of the Revised Code, 225 include terms and conditions to the effect that all claims 226 resulting from or arising out of any one person's bodily injury, 227 including death, shall collectively be subject to the limit of 228 the policy applicable to bodily injury, including death, 229 sustained by one person, and, for the purpose of such policy 230 limit shall constitute a single claim. Any such policy limit 231 shall be enforceable regardless of the number of insureds, claims 232 made, vehicles or premiums shown in the declarations or policy, 233 6 or vehicles involved in the accident. 234 (I) Nothing in this section shall prohibit the inclusion 236 of underinsured motorist coverage in any uninsured motorist 237 coverage provided in compliance with this section. 238 (J) The coverages offered under division (A) of this 240 section or selected in accordance with division (C) of this 241 section may include terms and conditions that preclude coverage 242 for bodily injury or death suffered by an insured under any of 243 the following circumstances: (1) While the insured is operating or occupying a motor 245 vehicle owned by, furnished to, or available for the regular use 246 of a named insured, a spouse, or a resident relative of a named 248 insured, if the motor vehicle is not specifically identified in 249 the policy under which a claim is made, or is not a newly 250 acquired or replacement motor vehicle covered under the terms of 251 the policy under which the uninsured and underinsured motorist 252 coverages are provided; (2) While the insured is operating or occupying a motor 254 vehicle without a reasonable belief that the insured is entitled 255 to do so, provided that under no circumstances will an insured 256 whose license has been suspended, revoked, or never issued, be 257 held to have a reasonable belief that the insured is entitled to 258 operate a motor vehicle; (3) When the bodily injury or death is caused by a motor 260 vehicle operated by any person who is specifically excluded from 261 coverage for bodily injury liability in the policy under which 262 the uninsured and underinsured motorist coverages are provided. 263 (K) As used in this section, "uninsured motor vehicle" and 265 "underinsured motor vehicle" do not include any of the following 267 motor vehicles: (1) A motor vehicle that has applicable liability coverage 270 in the policy under which the uninsured and underinsured motorist 271 coverages are provided; 272 (2) A motor vehicle owned by, furnished to, or available 274 7 for the regular use of a named insured, a spouse, or a resident 275 relative of a named insured; 276 (3) A motor vehicle owned by a political subdivision, 278 unless the operator of the motor vehicle has an immunity under 280 Chapter 2744. of the Revised Code that could be raised as a 281 defense in an action brought against the operator by the insured; 282 (4) A motor vehicle self-insured within the meaning of the 284 financial responsibility law of the state in which the motor 285 vehicle is registered. (L) As used in this section, "automobile liability or 287 motor vehicle liability policy of insurance" means either of the 288 following: (1) Any policy of insurance that serves as proof of 290 financial responsibility, as proof of financial responsibility is 291 defined by division (K) of section 4509.01 of the Revised Code, 292 for owners or operators of the motor vehicles specifically 294 identified in the policy of insurance; (2) Any umbrella liability policy of insurance written as 296 excess over one or more policies described in division (L)(1) of 297 this section. Section 2. That existing section 3937.18 of the Revised 299 Code is hereby repealed. 300 Section 3. It is the intent of the General Assembly in 302 amending division (A) of section 3937.18 of the Revised Code to 303 supersede the holdings of the Ohio Supreme Court in Sexton v. 304 State Farm Mut. Auto. Ins. Co. (1982), 69 Ohio St.2d 431, and 307 Moore v. State Auto. Mut. Ins. Co. (2000), 88 Ohio St.3d 27, that 309 division (A)(1) of section 3937.18 of the Revised Code does not 310 permit an insurer to limit uninsured or underinsured motorist 311 coverage in such a way that an insured must suffer bodily injury, 312 sickness, death or disease for any other insured to recover from 313 the insurer.